Constitutional Rorschach Test (or Zen Koan)

Justice Kennedy, responding to a question at Pepperdine about the President’s criticism of Citizens United.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

>>I’ll hazard a guess at an interpretation: so therefore he doesn’t give a **** if he screws up the process whereby people get elected for non-lifetime jobs?>>

I think that’s unnecessarily cynical, especially since he was in the majority. Rather, I think, he’s saying he doesn’t give a **** if some guy with a law degree and a little professional experience in that field happens to disagree with him.

Ken: If he weren’t in the majority, he couldn’t screw things up. And, to shave with Occam’s Razor: his remark applies to anyone in elected office, regardless of experience, so your inference may be unsupported. Jackson: unfortunately, it’s most likely C.U. minority Justices who’ll be retiring next; given the politics in the Senate, their replacements will probably be closer to Kennedy’s views than they are.

AJ wrote>>Ken: If he weren’t in the majority, he couldn’t screw things up.>>

Yes, that is logically correct. My point, however, was that since he was in the majority he was entitled to believe that he *didn’t* screw things up. In which case the opposing view expressed by Justice Stevens, also a distinguished jurist, probably would deserve a suitable refutation, but an off-hand slap by a non-jurist merited no more than a casual dismissal.

>>And, to shave with Occam’s Razor: his remark applies to anyone in elected office, regardless of experience,>>

Well, your use of “applies” is a presumption on your part. His remark was specifically about a specific comment by a specific person–a person of great importance, to be sure, but not a distinguished jurist. I would guess that Justice Kennedy would be much more concerned about the disagreement of his four colleagues, also distinguished jurists, than he would about a politician in elective office. That, of course, is simply my guess, but it conforms to the wording of his remark.